Controlling Destinies, Self-Determination and Indigenous Peoples
Indigenous Peoples' claims for Self-determination derive support from these general developments in International Law. They have also benefited from the creation, in 1982, of the United Nations Working Group on Indigenous Populations. Since 1986 the Working Group has been engaged in the elaboration of standards on the rights of Indigenous Peoples. In the Working Group and in other United Nations fora, there is confusion as to what is meant by Indigenous Self-determination. Much of this arises from the use of the term 'self-determination' as a synonym for 'secession'. Indigenous Self-determination is thus viewed as an inevitable threat to the Territorial Integrity and National Unity of states. Some Governments see their interests best served by casting the debate in this language. To avoid the conflict that may arise from such an interpretation, other Governments insist on restricting the definition to mean Internal Self-determination. Indigenous participants in the standard-setting process react vigorously against attempts to limit the parameters of the right of Self-determination to the conduct of their internal affairs. But to consider the issue in terms of only two alternatives, Internal Self-determination or Secession, is misleading for at least four reasons. First, some Indigenous peoples are victims of classic 'salt-water colonialism' (such as Torres Strait Islanders and the Inuit in Greenland). Under the United Nations law of desalinization, these peoples have a right to full 'external' self-determination, the modes of implementation of which include the establishment of an Independent State. Second, the use of the term 'secession' implies that having once submitted to the sovereignty of colonizing powers, Indigenous Peoples now seek to reassert their own sovereignty. In reality, however, the dispossession of Indigenous peoples generally occurred with force and without their consent. With few exceptions, Indigenous peoples did not participate in designing the constitutional order of the states into which they were incorporated and were denied recognition in decision-making structures. Indigenous peoples see the right of Self-determination as a mechanism to enable them to negotiate their political status and to consent to the terms of their future relationships with states. In a sense, this process is constitutive, involving the discarding of constitutional doctrine, which has sought to legitimize dispossession. In many countries, fundamental processes of constitutional review and redistribution of power are taking place. For Indigenous peoples, this process of belated 'state-building' is one of desalinization, based upon recognition of their unique status, not as racial or cultural minorities in larger societies, but as first peoples in their own territories. They argue that the exclusion of the option of Independent Statehood would involve a discriminatory relegation of Indigenous Self-determination to a category inferior to the Self-determination of other colonized peoples in violation of United Nations Charter. Article 1(2) of the Charter posits 'equal rights and self-determination of peoples' as complementary parts of one principle. Indigenous peoples thus distinguish the choice to pursue independent statehood as the ultimate expression of indigenous self-determination from demands for secession. They point out that in the international community's efforts to assist the liberation of colonized peoples in Asia, Africa and the Pacific, the term 'secession' was not used to describe the choice of independence by those peoples in order to end colonial domination. Third, to equate Indigenous Self-determination with secession, or to limit it to 'internal' Self-Determination, limits those external dimensions, which can provide opportunities for Indigenous peoples to enjoy an independent connection to the international community. Such connections can involve: • international supervision of the determination by Indigenous peoples of their political status; • the provision of financial and technical assistance to Indigenous peoples by international organizations; • a facilitation of dialogue to promote respect for the rights and aspirations of Indigenous peoples; and • access to dispute resolution and agreement-enforcement procedures outside national constitutions and legal systems. Fourth, to posit Indigenous Self-determination as an inevitable threat to the territorial integrity and national unity of states is to ignore the fact that most Indigenous peoples do not desire Independent Statehood. As innumerable submissions to the Working Group have made clear, most indigenous peoples take a functional approach to Self-determination, seeking constitutional reform to enable them to develop their political institutions and to determine their own development within existing states. In light of their small numbers, vulnerability and limited resources, there is widespread recognition amongst Indigenous peoples of the practical benefits of partnerships with states. Indeed, some Indigenous peoples reject the category of statehood as irrelevant or inappropriate. Although the debate on the question of independence for Indigenous peoples is more than rhetorical, it should not conceal the degree of consensus, which has emerged on the fight of Indigenous peoples to Self-determination. This consensus has been demonstrated at a series of United Nations expert meetings convened by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities. It is also reflected in the text of the Draft Declaration on the Rights of Indigenous Peoples, and is increasingly apparent in the practice of states, as reported upon in their oral and written submissions in relevant United Nations fora. Many government participants in the Working Group and many international lawyers support the proposition that indigenous peoples are 'peoples' in the sense of international law. Their histories unite them as distinct societies; they have common languages, laws, traditions and often a unique spiritual and economic relationship with the territories in which they live and have lived. In the course of the Working Group's sessions, the provisions of the Draft Declaration dealing with Self-determination have been rendered in increasingly resolute language. In Article 3 of the Declaration, as agreed upon by the members of the Working Group at its eleventh session (1993), the language of Article 1 of the International Covenants (the ICCPR and ICESCR), is reproduced without alteration: Indigenous peoples have the right of Self-determination. By virtue of this right they freely determine their political status and freely pursue their economic, social and cultural development. As elaborated in the Draft Declaration, the exercise of Indigenous Self-determination involves two elements. The first of these reflects the principle of control and is concerned with the right of Indigenous peoples to control their institutions, territories and development without external interference. The second element reflects the principle of consent and addresses the right of Indigenous peoples to establish and conduct their relationships with non-Indigenous institutions on the basis of consent. The first element, in its minimum form, is sometimes referred to as the right to Self-Government or Autonomy. Article 31 of the Draft Declaration provides: Indigenous peoples, as a specific form of exercising their right to Self-determination, have the right to Autonomy or Self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions. Related articles of the Declaration provide for the rights of Indigenous peoples to determine their own citizenship and the structures and membership of their institutions; to own and control the use and development of their lands, territories and resources, including their cultural and intellectual property; to protection of their sacred places; to maintain and develop their economies; to determine strategies for their development; and to maintain and develop their juridical customs, procedures and practices. The effective exercise of these rights of Self-Government may require a process of land restoration, as well as the revitalization of cultural, spiritual, linguistic and educational institutions and political, economic and social systems. The second element of Indigenous peoples' Self-determination is sometimes subsumed under the heading of participatory rights. These refer to the relationship of Indigenous peoples and their institutions to Non-Indigenous institutions. Participatory rights do not oblige Indigenous peoples to engage in the life of the state, but do require, however, that where they so desire, their representatives shall participate fully at all levels of decision-making in matters affecting their fights and in devising legislative or administrative measures which may affect them. The Chairperson of the Working Group adopts a careful approach towards Self-determination for Indigenous peoples, seeking to promote the negotiation of agreements with existing states instead of focusing on the formation of new states. In particular, she supports a distinction between External Self-determination, in the sense of acts by which peoples liberate themselves from alien colonial rule and determine their future international status, and Internal Self-determination, which refers to the processes of selecting systems of government and administration and to the substantive nature of the regimes selected. Indigenous peoples' right of Self-determination imposes upon states the duty to accommodate Indigenous Peoples' aspirations through constitutional reforms designed to share power democratically with all groups. In the post-colonial era, only when a national political system becomes so exclusive and non-democratic that it no longer can be said to 'represent the whole people', may constituent peoples perhaps be justified in creating a new state for their safety and security. Invoking the 1970 Friendly Relations Declaration, the Chairperson employs the criteria of 'effectively representative' to determine the point at which Indigenous Peoples are no longer bound to seek to reach agreement on sharing power within existing states in exercising their right of Self-determination. A number of governments have proposed that indigenous peoples be ensured participation in the drafting process in the Commission. Nonetheless, the essential elements of an instrument concerned with the dignity and well being of indigenous peoples have been established and are increasingly reflected in the practice of states on the national level. This practice reveals current attempts to accommodate indigenous institutional forms and to negotiate comprehensive arrangements for relations between indigenous and non-indigenous population groups and their political institutions. The reconciliation process in Australia is frequently cited in this connection. Also at the level of international organizations, there is recognition that indigenous peoples must become partners in international political processes. The International Year for the World's Indigenous People, proclaimed by the United Nations General Assembly for 1993, was based on the theme 'A New Partnership' and saw active indigenous involvement through the appointment of indigenous associate experts to the United Nations and the participation of indigenous representatives in technical meetings to plan and evaluate activities. The World Conference on Human Rights, convened in June 1993 in Vienna, recommended that the General Assembly proclaim an International Decade of the World's Indigenous People, including action-orientated programs to be decided upon in partnership with indigenous peoples. The Decade was subsequently so proclaimed, and was launched on December 10, 1994. A vigorous debate has begun on the structures and procedures of future action within the United Nations system on issues related to indigenous peoples. A wide range of proposals have been submitted in various fora, including the appointment of permanent indigenous United Nations staff members; the provision to indigenous peoples of access to all levels of the United Nations when matters of concern are under consideration; the establishment of a permanent, high-level United Nations forum on indigenous issues, composed also of indigenous representatives; the establishment of a mechanism for monitoring and taking action to protect the rights of indigenous peoples, advised by indigenous experts; the provision of advisory services and technical and financial assistance to indigenous peoples and their organizations, and the development by specialized agencies and related United Nations bodies of comprehensive, coordinated programs to contribute towards the realization of the rights of indigenous peoples.